Raj Pal vs Nehru Lal
2015 Latest Caselaw 250 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                           R.S.A. No.356/2014

                                      Decided on : 12th January, 2015

RAJ PAL                                                  ...... Appellant

                   Through:      Mr.Daniest Allen, Advocate.

                      Versus

NEHRU LAL                                            ...... Respondent
                   Through:      None.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI


V.K. SHALI, J. (ORAL)

1. I have heard the learned counsel for the appellant. He has not been

able to make out any substantial question of law in the instant appeal and,

therefore, the appeal is dismissed.

2. Briefly stated, the facts of the case are that the respondent/plaintiff

herein had filed two suits i.e. one for recovery of possession (Suit

No.294/2010) and the other permanent injunction (Suit No.295/2010) in

respect of the suit property. Both these suits i.e. the suit for recovery of

possession as well as the suit for permanent injunction were decreed

against the appellant. However, the appellant chose to file an appeal only against the judgment and decree passed in the suit for possession. The

first appellate court upheld the judgment and decree passed against the

appellant vide order 25.09.2014. Now the present regular second appeal

has been filed only against the judgment and decree so far as the

possession is concerned.

3. The case which was set up by the appellant/plaintiff was that one

Sh.Phool Singh was the cousin brother of the respondent and he had

permitted Phool Singh to occupy two rooms and some other portions of

the property in question bearing No.23, Dhirpur Gaon near Nirankari

Colony, Kingsway Camp, Delhi - 110009. As a licensee he was

permitted to enjoy this license during his lifetime and since he had died,

the widow (the present appellant) stepped into the shoes of her husband

and continued with the possession of the suit property. The appellant was

given a notice to vacate the premises after revocation of license in favour

of her husband and since she did not respond, therefore, the suit for

possession and permanent injunction was filed.

4. The defendant had taken the plea in the written statement that she

is the owner of the suit property and, therefore, there was no question of

her vacating the same. Alternatively, she had also taken the plea of

adverse possession. No evidence with regard to the adverse possession or the suit property having been owned by her or her husband by way of a

settlement deed having been executed between her husband and the

respondent/plaintiff was brought on record. Therefore, the court was left

with no other option but to hold that the respondent/plaintiff was the

owner of the suit property as he had not only proved the sale deed, but he

had established from the oral testimony that he is the owner of the

property in question. The present appellant was not able to produce any

document or any oral evidence to show that she was in adverse

possession or that her husband had become owner of the same by virtue

of a settlement deed. In the absence of the same, she could not have been

considered as the owner on account of Section 17 of the Registration Act,

1908 and accordingly the judgment and the decree passed by the trial

court was upheld by the first appellate court.

5. The contention of the learned counsel for the appellant is that the

respondent has not been able to establish his ownership qua the suit

property. On the contrary, it has been contended that the appellant was

the owner of the suit property by virtue of adverse possession while as the

trial court and the first appellate court had wrongly put the burden on

them with regard to their proof of ownership. Both these questions are stated to be constituting a substantial question of law and accordingly it is

prayed that the appeal may be admitted.

6. The learned counsel for the appellant has also drawn the attention

of the court to the averments made in the application where certain

allegations are purported to have been made against the Additional

District Judges.

7. I do not consider it appropriate to discuss and analyze the stand of

the respondent on account of the fact that all these allegations are bereft

of any merit.

8. The contention of the learned counsel for the appellant that the

learned ADJ had a bias and therefore ought not to have heard and decided

the appeal is essentially beyond the domain of this court. If the appellant

felt aggrieved on account of the fact that his appeal was listed before a

court which it did not want to consider, the proper course of remedy open

to him was to get the matter transferred rather than take this frivolous

plea before this court in second appeal.

9. I do not consider that the present matter involves any substantial

question of law much less a question which may give him access to the

suit property, nor the appellant has been able to show that it involves one.

10. For the reasons mentioned above, I am fully satisfied that the

appellant has not been able to make out any substantial question of law in

the instant appeal. The appeal is accordingly dismissed.

11. No order as to costs.

V.K. SHALI, J.

JANUARY 12, 2015/dm